Would Proposed Federal Shield Law Have Protected New York Times Reporter James Risen?

A proposed federal shield law that would grant journalists covered by the legislation a level of protection has passed in the Senate Judiciary Committee and moved to the full Senate. The shield law would likely protect reporters from subpoenas intended to force them to give up confidential information about their sources, but the protection national security journalists would be able to enjoy is debatable.

Briefly, Sterling is charged with multiple violations of the Espionage Act, the World War I-era law the Obama Justice Department has relied upon to pursue leakers even though it was never intended to be used for that purpose.

Sterling allegedly disclosed information that included details of a classified program "intended to impede Iran's efforts to acquire or develop nuclear weapons," which was published in Times reporter James Risen's book, State of War. The government believes it must subpoena Risen to testify against his alleged source because it is essential to prosecuting and convicting Sterling.

Times executive editor Jill Abramson has said the effort against Risen is detrimental to "the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people." She has also expressed concern that the "process of news gathering is being criminalized" and that the Obama administration's actions are frightening potential sources.

If the proposed federal shield law passed, it would establish a process that does not currently. The mere existence of a process could have helped Risen fight the subpoena more effectively than he has been able to in the courts.

The process the proposed federal shield law authorizes is similar to procedures courts use when hearing motions to quash a subpoena. The federal government agency would not be able to compel disclosure of information from a "covered journalist" unless the agency seeking compelled disclosure has "exhausted all reasonable alternative sources (other than a covered journalist)" to obtain the "protected information."

In a criminal investigation or prosecution, there also must be "reasonable grounds to believe that a crime has occurred," "the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution" and the "Attorney General certifies that the decision to request compelled disclosure" is authorized under federal regulations.

If the "covered journalist has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure, including the extent of any harm to national security," the federal government agency would be able to force the journalist to reveal confidential information about his or her source.

What would this mean for Risen?

The government clearly believes a crime occurred--the unauthorized disclosure of national defense information by Sterling to Risen. The government also has successfully argued to an appeals court that the information is "essential" to prosecuting Sterling successfully. Attorney General Eric Holder has, logically, accepted that it is reasonable for the Justice Department to target Risen and force him to testify. The issue of whether disclosure would be "contrary to the public interest" would not outweigh what one could describe as the government's "national security interests" in the case, which the government could argue justify compelling disclosure.

A national security exemption to "prevent terrorist activity or harm to the national security" was written into the proposed federal shield law. How might that have applied to Risen?

Kurt Wimmer, a Washington, DC media lawyer, who, according to the Reporters Committee for Freedom of the Press (RCFP), "has consulted with House and Senate staff members on draft bills as counsel to the Newspaper Association of America," told RCFP, "The way the national security exception is written in the Senate, you can only use that exception if the information that you're getting at is intended to prevent a future act of terrorism or a national security incident." He added, "Identifying a leaker of something that was published years ago, I don't think could credibly be seen as preventing a new national security incident."

It is less likely the government would have argued Risen needed to be forced to testify to prevent a terrorist attack or "national security incident" to identify who leaked the information. What is more likely is the government would argue he needed to be forced to testify to prevent "harm to the national security." Government attorneys would likely argue, by not forcing Risen to testify, a court would be making it possible for future leakers to get away with disseminating national defense information that could do harm because they now they would know they would not be identified in court if they gave information to a "covered journalist."

Additionally, the national security exemption would allow the government to compel disclosure if information would reveal "other ats that are reasonably likely to cause significant and articulable harm to national security." Investigators or prosecutors may choose to argue they do not know the full extent of how a leaker breached security and turn to "covered journalists" to find out that information. Such information would not only be useful in convicting alleged leakers like Sterling but also in preventing future leaks from happening.

But, significantly, the proposed federal shield law codifies Justice Department media guidelines issued in the wake of controversy around the Department's overly broad seizure of phone records from the Associated Press for a leak investigation and the labeling of Fox News reporter James Rosen as an "aider, abettor and co-conspirator" in a leak, which is being prosecuted.

Risen's lawyer, Joel Kurtzberg, wrote a letter to the Fourth Circuit Court of Appeals arguing these guidelines would have protected Risen. He highlighted how guidelines say the "Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure" and the "Department's policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution."

The problem for Risen, however, is the guidelines do not actually change the equation in the case, since the Department argues they are only compelling information "as a last resort" and the Fourth Circuit Court of Appeals agrees.

In its ruling against Risen in July, the court found, "Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information."

Furthermore, the Fourth Circuit Court of Appeals determined, even if Risen had a qualified "reporter's privilege," he would not have been protected because of the facts in the case. "Risen has waived any privilege by violating the promise of confidentiality and disclosing the information to a third party. To rule otherwise would not only allow journalists to protect their confidential sources in criminal proceedings, but would also permit journalists to promise confidentiality to those engaged in ongoing criminal conduct, while at the same time disclosing their identities to anyone except law enforcement, grand juries investigating the crimes and juries called upon to determine innocence or guilt."

The information Sterling allegedly provided was in the public interest. Risen's book, State of War, as Judge Roger Gregory indicated in a dissenting opinion in the Fourth Circuit Court of Appeals ruling, highlighted how US intelligence failed to uncover weapons of mass destruction in Iraq. His "investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program" was newsworthy, given claims in the National Intelligence Estimate of 2007. His reporting on "Iran's nuclear capabilities" was "also particularly relevant given the criticism of the national press for its perceived failure to scrutinize United States intelligence regarding Iraq's weapons capabilities."

Yet, currently, a journalist might think twice about pursuing a similar story because they might face the same situation Risen currently faces, where he can scarcely do his work as a national security journalist because he is in the crosshairs of the Justice Department.

Senators like Sen. Patrick Leahy and Sen. Chuck Schumer, who are supporters of the proposed federal shield law, have suggested a shield law is needed to protect someone like James Risen. Media groups or organizations likely hope any federal shield legislation signed into law would protect Risen (although, surprisingly, his case went unmentioned in a letter to Leahy in support of the shield law sent on September 9). But it seems clear the government would be able to manipulate the shield law to avoid a situation where someone like Risen was protected.

This would perpetuate the climate that currently exists, where there is this chilling effect endangering national security journalism.

The solution is to press senators or representatives to further define the limits of the national security exemption before the bill is passed in Congress. Otherwise, the body of case law the Justice Department and courts rely upon and the deference federal courts typically show to government claims about national security will trump whatever public interest defense journalists like Risen try to make when seeking to establish they should be protected by the proposed federal shield law.